People v. Palacios CA2/5 ( 2014 )

Filed 9/18/14 P. v. Palacios CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B254109
Plaintiff and Respondent, (Los Angeles County Super. Ct.
No. BA416056)
v.
PEDRO PALACIOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Jean
Arthur, Judge. Affirmed.
Miriam K. Billington, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Defendant and appellant Pedro Palacios was convicted by jury of possession of
cocaine base for the purpose of sale, in violation of Health and Safety Code section
11351, subdivision (a). Defendant admitted serving seven prior prison terms (Pen. Code,
§ 667.5, subd. (b)), and suffering seven prior convictions for sale or possession for sale of
controlled substances (Health & Saf. Code, § 11370.2, subd. (a)). The trial court also
found defendant in violation of probation in case No. BA406600. The court sentenced
defendant to 20 years in the county jail. Defendant was sentenced to the upper term of 5
years on the charged offense, enhanced by a total of 15 years for the prior convictions
under Health & Safety Code section 11370.2, subdivision (a). The court struck the prior
prison terms enhancements for purposes of sentencing.
Defendant filed a timely notice of appeal from the judgment. This court appointed
counsel to represent defendant on appeal. On August 7, 2014, appointed counsel filed a
brief raising no issues, asking this court to independently review the record for arguable
appellate contentions under People v. Wende (1979) 25 Cal.3d 436. Defendant was
advised of his right to file a supplemental brief within 30 days.
Defendant filed a letter brief with the court arguing (1) he received ineffective
assistance of counsel by multiple attorneys throughout the proceedings, (2) there was
incorrect prior sentencing and commitment times in connection with case No. BA364020,
which was confused with case No. BA406600 during sentencing; (3) counsel was
ineffective in her questioning regarding where defendant obtained the $71 in his
possession at the time of his arrest; and (4) counsel had inadequate time to prepare.
We have completed our independent review of the record. Our review of the
record reveals there are no arguable contentions on appeal and defendant’s contentions
lack merit.
The record contains substantial evidence that defendant possessed cocaine base for
the purpose of sale. The arresting officer observed defendant in the skid row area of Los
Angeles, a location known for narcotic sales. Defendant secreted multiple bindles of
cocaine base in his mouth. After trying to swallow the bindles, defendant spit them out
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and stomped on them in an attempt to destroy the evidence. The arresting officer
qualified as an expert on the subject of the use, possession, and sale of controlled
substances, and opined that defendant possessed the cocaine base for the purpose of sale.
The officer based his opinion on the amount of cocaine base possessed by defendant, the
manner of packaging in bindles, the location of the offense in an area known for narcotic
sales, the absence of evidence defendant was a cocaine base user, and the $71 in cash in
defendant’s wallet.
The jury was properly instructed on the law, and the sentence imposed was within
the limits of judicial discretion. No arguable appellate contentions exist and we are
satisfied that appointed appellate counsel fulfilled her constitutional obligations.
Defendant’s vague claim that he received ineffective assistance of counsel by
multiple attorneys throughout the proceedings fails to present an arguable appellate
contention. Defendant does not attempt to explain in what manner his “multiple
attorneys” provided ineffective assistance of counsel.
Trial counsel certainly did not provide ineffective assistance. She attempted to
resolve the case with a favorable disposition of 10 ten years in custody, but defendant
rejected the disposition, despite the trial court telling him directly that he thought the case
was worth 20 years given defendant’s recidivism as a drug dealer. Trial counsel also
thoroughly cross-examined the arresting officer on every aspect of the case, including the
recovery of the drugs and his opinion defendant possessed the cocaine base for sale.
After an hour of cross-examination, the trial court exercised its discretion under Evidence
Code section 352 to terminate the examination. Contrary to defendant’s contention,
defense counsel did establish through cross-examination that defendant might have had
$71 in his possession from a general relief check. Defense counsel presented a vigorous
argument to the jury that there was a reasonable doubt whether defendant possessed the
cocaine base for the purpose of sale. There is nothing in the record on appeal to suggest
that trial counsel did not have adequate time to prepare, and our review of her
performance at trial provides not hint of inadequate preparation. The challenge to
counsel’s performance in the trial court is without merit.
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Finally, defendant’s conclusory claim that two cases were somehow confused in
the probation report does not raise an arguable appellate contention. Defendant does not
explain why he thinks the cases were confused, nor does he explain the significance of
any confusion. This court has reviewed the probation report, and there is nothing on the
face of the report that reflects any confusion regarding defendant’s criminal history.
Considering defendant’s 14 prior felony convictions, his deportation order, and the fact
he was on probation at the time of this offense, defendant has fallen woefully short of
establishing prejudice, even if there was some confusion among his numerous cases.
(Cal. Const., art. VI, § 13.)
The judgment is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)
KRIEGLER, J.
We concur:
TURNER, P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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